Court name
High Court
Case name
Kock v Kock
Media neutral citation
[2011] NAHC 14













13








CASE
NO. I 1361/2007





IN
THE HIGH COURT OF NAMIBIA



In
the matter between



WILLEM
ALBERTUS KOCH

…............................................................................PLAINTIFF


and



BABARA
GAIL KOCH (BORN TENNANT)

….................................................DEFENDANT



CORAM:
Tommasi,
J



HEARD
ON:
16
- 18 June 2009


DELIVERED
ON:
31/01/2011













JUDGMENT













TOMMASI,
J







[1]
The Plaintiff and the Defendant were married to each other on 8 March
2000 i.e for about 7 years when the Plaintiff instituted a divorce
action against the Defendant on 18 May 2007. The Defendant filed a
counterclaim and for the purposes hereof, I shall refer to the
parties as in convention.















[2]
The Plaintiff's cause of action raised in his particulars of claim,
is actual desertion by the Defendant on 3 April 2007. The plaintiff
also made averments in respect of the conduct of the Defendant in his
Particulars of Claim and incorporated it into his plea to the
Defendant's Counterclaim. Since the cause of action of the Plaintiff
is actual desertion these averments will be dealt with as his Plea to
the Defendant's Counterclaim.















[3]
These averments are: the Defendant indicated that she wanted to have
nothing to do with him and indicated that she wanted a divorce; she
lied to him; she allowed her minor son from a previous marriage to
provoke, threaten and assault him; believed the lies of her minor
daughter; laid false criminal charges (Rape) against him; had an
inappropriate relationship with another man; insulted him using
vulgar and profane language and; in extravagant manner burdened the
joint estate with debts she expected him to pay. The Plaintiff
claimed forfeiture of benefits, transfer of the immovable property
into his name and cost of suit.



[4]
The Defendant pleaded that the Plaintiff made co-habitation
intolerable through his conduct contained in her Counterclaim in
which she claims a divorce on the ground of the Plaintiff's
constructive desertion. She avers that no malice was intended.



















[5]
Defendant in her counterclaim aver that: the Plaintiff failed to
communicate with her, showed her no love and affection; frequently
started meaningless quarrels with her; used grossly abusive language
toward her in the presence of her minor children, showed no interest
in the continuation of the marriage; assaulted the Defendant's minor
son of a previous marriage; sexually abused her minor daughter; leads
an extravagant lifestyle thus encumbering the joint estate with
unnecessary debts; frequently threatened to kill the defendant
particularly during March 2007 i.e shortly before she left the common
home. The Defendant claimed division of the joint estate.















[6]
The Plaintiff was represented by Mr Karstens of the firm Neves Legal
Practitioners and the Defendant appeared in person.















[7]
The only real dispute between the parties is whether this Court
should grant a forfeiture order (Plaintiff's claim) or division of
the joint estate



(Defendant's
claim). Much of the evidence presented by the parties centered on the
assets of the joint estate and very little evidence was led to
support the claims made by the parties. Both parties did so at the
expense of giving this Court a detailed account of what brought about
the breakdown of the marriage.























[8]
Plaintiff's
Claim







It
is common cause that the Defendant moved out of the common home on 3
April 2007. The Defendant admitted that she informed the Plaintiff
that she wants a divorce; that she consulted a lawyer with the aim of
instituting divorce action and that she subsequently moved out of the
common home.



















[9]
In
VAN
VUUREN v VAN VUUREN 1959 (3) SA 765 (A)
it
was held that a party seeking an order for restitution of conjugal
rights on the ground of malicious desertion, has the onus of proving
both the
factum
of
desertion and the
animus
deserendi
(that
is to say the intention to terminate the marital relationship without
justification therefor), unless he is relieved of the burden of proof
by admissions made in the plea.



[10]
Although the Defendant admitted that she left the common home, she
placed in disputed that she has done so maliciously and the burden
remains with the Plaintiff to prove that the Defendant left the
common home with the intention to terminate the marital relationship
without justification.



















[11]
The parties were both divorcees when they first met. They first
resided in South Africa and moved to Namibia in January 2006. No
children were born of the marriage between the parties. Two minor
children, a son and a daughter of the Defendant from a previous
marriage, resided with the parties.















[12]
It appears from the evidence that the final breakdown in the marriage
occurred in the months between January 2007 and March 2007. In
January 2007 the Defendant's 14 year old son, was involved in a motor
vehicle accident and sustained severe bodily injuries inter alia, a
broken pelvis. He was hospitalized in Windhoek and the Defendant
accompanied him.



















[13]
The Defendant's minor daughter was left in the care of the Plaintiff.
The Plaintiff sent her with a lift to Windhoek as she wanted to be
with the Defendant. During their stay in Windhoek, the minor daughter
informed the Defendant that the Plaintiff sexually molested her. The
Plaintiff testified that he distanced himself from the minor children
of the Defendant as a result of this allegation. From his testimony
it may be inferred that the Plaintiff came to hear of this allegation
whilst he was still residing with the Plaintiff. According to the
evidence a charge was laid subsequently although it is not clear from
the evidence when this took place. The plaintiff averred in his
particulars of claim and in the further particulars thereto that a
false charge of rape was made to the Namibian Police. This would
indicate that the charge was already made by 18 May 2007 when the
Summons was issued. No evidence in respect of the commission of the
offence was admitted since the matter was pending in the Criminal
Court.



















[14]
The minor son was bedridden and on crutches for a period of three
months i.e from January to March 2007 and the Defendant stopped
working to take care of her son. The Plaintiff did not challenge the
testimony of the Defendant that he, during this period, removed them
as members of his medical aid scheme.



















[15]
According to the Plaintiff it was during this time that the children
of the Defendant informed him that the Defendant was having an affair
with another man. One would have expected the Plaintiff to have given
a little bit more information, other than the hearsay evidence
presented, as to why he believed this to be true. On the evidence
presented it cannot be said that the belief held was a reasonable
belief. The Plaintiff for this reason admitted that he in this period
did not show the Defendant love and affection. Despite this knowledge
the Plaintiff continued living with the Defendant. No evidence was
led that sexual intercourse between the parties were discontinued.



















[16]
Plaintiff testified that the parties had "frequent
disagreements" because of the behavior of the Defendant and her
minor children.



















[17]
A bare allegation was made by the Plaintiff that the Defendant's
minor son was threatening and assaulting him without evidence being
led as to the circumstances date and place where this occurred.
Without the evidence to support this denial the Court is unable to
find that this in fact took place.



















[18]
The Defendant averred that it was in fact the Plaintiff who assaulted
her minor son. She testified that he hit him with a hose-pipe, he hit
him in his face and on his ear. She testified further that the
Plaintiff pushed her son when he was on crutches i.e during the
period between January and the time that she left, causing him to
fall. Apart from a bare denial of assault by the Plaintiff this
testimony was not challenged under cross-examination. The



Plaintiff
however admitted to disciplining the minor son like a father would by
hitting him on his buttocks. No details as to dates and places were
given and insufficient evidence exist for this Court to determine
whether the Plaintiff acted in the manner described by the Defendant.



















[19]
The Defendant averred in her pleadings that the Plaintiff threatened
to kill her with a fire-arm and in March 2007. She testified to the
effect that the Plaintiff reached for his fire-arm when they were
having disagreements and held it to her head on one occasion. The
Plaintiff denied this allegation but did not challenge the evidence
of the Defendant in cross examination. The Plaintiff admitted that
his firearm was seized by the Police in South Africa after they
received a call from the Defendant. The fire-arm was retrieved by the
Plaintiff the next down at the behest of the Defendant's plea to the
Police Officer. The Defendant failed to give details of the date,
place and circumstances that led to these incidences. There is thus
insufficient evidence adduced by the Defendant to support this
allegation.



















[20]
Both parties were
ad
idem
that
there was constant disagreement in respect of the minor children of
the Defendant. The Plaintiff felt that the minor daughter lied to the
Defendant which she believed but felt himself compelled to believe
the children of the Defendant when they made allegations of the
Defendant's affair with another man. I am convinced that both parties
quarreled and said things that were better left unsaid. For reasons
stated hereunder it appears that during the last three months most of
the disagreements were initiated by the Plaintiff as he appears to
have had difficulty with the behavior of the Defendant and the
children.















[21]
In the same vain it is abundantly clear from the evidence that both
parties entered into debts and that this happened from the beginning
of the marriage. Both parties benefited from these arrangements and
this may have been the cause of many disagreements between the
parties but certainly was not the reason why the Defendant left the
common home.



















[22]
The real reason for the Defendant leaving the common home was
apparent from the following testimony by the Defendant when she was
asked if she had discussed the behavior of the Plaintiff with him:



"Yes, Your
Worship, but I also just believe and I felt after what he had done to
my children, I could not expose them to that life anymore. It is not
acceptable; it is not decent, it is not appropriate. I do not want to
be with him, I could not allow that for my children, I really could
not"



[23]
It was common cause between the parties that a criminal charge was
made based on an allegation by the daughter of the Defendant of
sexual molestation. Plaintiff denied the allegation of sexual abuse
and took issue with the fact that the Defendant believed her
daughter's lies. Any reasonable parent has to pay close attention to
allegations of this nature and it cannot simply be ignored. Not only
did the Defendant belief her daughter but she also took steps shortly
after she left the common home to report the matter to the Police as
was her right to do. The Plaintiff was also unhappy that a false
charge of rape was made. Whether or not those charges were falsely
made can only be determined after the trial in a court with the
necessary jurisdiction.



















[24]
The issue is not whether it was true but the fact that the Defendant
believed and her daughter and whether such belief was indeed
reasonable. In
MOHAUD
v MOHAUD 1964 (4) SA 348 (T) VIEYRA J
at
p 350 D-E stated the following where the deserting party raised the
justification of adultery:



but
it seems to me that in our law too an honest, reasonable belief that
adultery had been committed would justify the deserter whose conduct
had been impelled by such belief. I leave aside the question as to
whether there may not be instances of a bona fide belief not based on
objectively reasonable grounds which might yet negative the animus
deserendi."



[25]
The fact that the allegation was made left the Defendant no choice
but to report it to the authorities. The Defendant was limited by the
Court to go into great detail on the merits of the criminal case
therefore not making it possible to provide the court with facts to
determine whether such a belief was a reasonable belief. On the other
hand it is expected of any reasonable parent to take the necessary
steps for the protection of her child inclusive of removing the child
from an environment threatening her safety and wellbeing. The
Defendant's genuine belief of the allegation is manifested in her
pressing charges. I am of the view that this constitutes sufficient
justification for the Defendant to have left the common home. I have
to emphasize that this is not a determination of the guilt or
innocence of the Plaintiff but a finding that the Defendant genuinely
believed her daughter and was justified to move out of the common
home.















[26]
Under the circumstances I find that the Plaintiff failed to discharge
the onus that the Defendant had maliciously deserted him.























[27]
Defendant's
Counterclaim



This
Court has to determine whether the Defendant has succeeded in
establishing that there has been constructive desertion. In
MORGAN
v MORGAN 1964 (1) SA 687 (O) COLMAN J
stated
at page 689 A-B that:



"It is
well established that there are two elements in a constructive
desertion. There must be unlawful conduct, and the conduct must be
committed with the intention of putting an end to the marital
relationship.






He
further indicated that:







" It may,
in certain circumstances, be possible to infer that conduct such as
that referred to by Prof. Hahlo was committed with A that intent;
but, in my judgment there must be facts, other than the bare
commission of the offence, to support that inference with regard to
intention."















[28]
One of the main issues between the parties is the allegation made by
the Defendant's minor daughter. This Court deemed it necessary to
exclude this evidence since this matter was pending in the criminal
court. This conduct cannot in any way be ascribed to the Plaintiff
until the matter has been adjudicated on.



















[29]
The Defendant complained that the Plaintiff failed to show her love
and affection, failed to constructively communicate with her, started
meaningless quarrels with her and used foul and abusive language. The



Plaintiff
denied having frequent quarrels with the Defendant and alleged that
she was the one who used foul and abusive language. He however
testified when asked why felt there was communication between the
parties, that they had "frequent disagreements because of the
Defendant's behavior and the children's behavior". This, with
all due respect, can hardly be described as constructive
communication.















[30]
The Plaintiff's admitted not showing the Defendant love and affection
as follow:



"...
toward the end of this before she left, that is true, I showed no
love or affection toward the Defendant"







When
asked why he responded as follow:







"....it is
because I found out through her own children that she was involved in
affairs (sic) with another man. And that naturally moved me to not
want much to do with her (sic)



I
have already indicated that the belief held by the Plaintiff was not
a reasonable one. The right to love and affection is an important
part of the marital state and forms part of what is often referred to
in our Courts as
consortium.



[31]
I have already dealt with the allegation by the Defendant that the
Plaintiff threatened to kill her with a firearm during March 2007.















[32]
The Defendant intimated that the Plaintiff was extravagant from the
beginning of their marriage. Suffice it to say that it was clear that
both parties accused the other of being extravagant when the
undisputed evidence indicated that both of them: entered into credit
agreements with various institutions binding the joint estate; both
parties contributed to the joint estate and; both parties benefited
from the credit agreements entered into. No disclosure was made by
both parties prior to the commencement of the trial and neither was
an application brought to Court for disclosure during trial. Not
having the benefit of the documentary proof it is difficult to
determine the veracity of these allegations. It can hardly be said
that by buying the Defendant expensive gifts such as a Mercedes Benz,
that he intended, in this manner, to terminate the marriage.















[33]
I have already dealt with the Defendant's allegation that the
Plaintiff assaulted the Defendant's minor son. The unlawfulness of
this has not been proved on a balance of probability and therefore
the Court cannot consider it as a contributing factor to the
breakdown of the marriage.



[34]
Having considered the above I find that the Defendant, on a balance
of probability, proved that the Plaintiff unlawfully: failed to show
the Defendant love and affection; failed to communicate in a
constructive manner with the Defendant and initiated frequent
disagreements. This behavior was designed to punish the Defendant for
her behavior and to make co-habitation intolerable.



















[35]
The allegation by the Defendant's daughter clearly made the Plaintiff
unhappy as well as the belief that the Defendant was having an affair
with another man. In his own words the alleged affair
"moved
me to not want much to do with her"
thus
indicating that he was no longer interested in being in a marital
relationship with the Defendant. His defense or reason for not
showing the Defendant love and affection i.e that he believed that
the Defendant had an affair is not a reasonable one. His statement is
a clear indication of his intention the terminate the relationship
between the parties.















[36]
The Plaintiff testified that the frequent disagreements were
attributed to the behavior of the Defendant and her children. Since
Plaintiff had taken issue with their behavior it stand to reason that
he would be the one raising or initiating the "frequent
disagreements" were initiated by the Plaintiff.



[37]
The Court is satisfied that the Plaintiff intended to make
co-habitation intolerable for the Defendant and in this manner
terminate the marital relationship between the parties.















[38]
Having considered all of the above I am satisfied that the Defendant
proved, on a balance of probability, that the Plaintiff
constructively deserted the Defendant.















[39]
Counsel for Plaintiff urged to court to determine the manner in which
to joint estate is to be divided. I have decided against this as no
discovery was made between the parties. The Defendant also indicated
to the Court that she does not persist with her claim for costs and
therefore not cost order will be made.















[40]
In the premises it is the ordered that:



1.
the Plaintiff's Claim is dismissed and;



2.
the defendant is granted the following:



2.1.
A rule nisi be issued calling upon the Plaintiff (Defendant in
re-convention) to return to the Defendant (Plaintiff in
re-convention) on or before 14
th
day
of March 2011 or, failing which, to show cause on 11
th
day
of April 2011:










(a)
why a decree of divorce should not be granted and;


(b)
why the joint estate should not be divided.









TOMMASI, J





COUNSEL
ON BEHALF OF THE PLAINTIFF:

Mr
L Karstens



INSTRUCTED
BY:
Neves
Legal Practitioners


COUNSEL
ON BEHALF OF THE DEFENDANT:

In
Person